Opinion of the Court
articles from the same time period.[1]
A few of respondents' amici muster historical arguments, but they are very weak. The Solicitor General repeats Roe's claim that it is "doubtful abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus." Brief for United States as Amicus Curiae 26 (quoting Roe, 410 U.S., at 136). But as we have seen, great common-law authorities like Bracton, Coke, Hale, and Blackstone all wrote that a post-quickening abortion was a crime—and a serious one at that. Moreover, Hale and Blackstone (and many other authorities following them) asserted that even a pre-quickening abortion was "unlawful" and that, as a result, an abortionist was guilty of murder if the woman died from the attempt.
Instead of following these authorities, Roe relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views.[2] These articles have been discredited,[3] and it has come to light that even members of Jane Roe's legal team did not regard them as serious
- ↑ See Roe, 410 U. S., at 154-155 (collecting cases decided between 1970 and 1973).; C. Means, Jr., The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335, 337-339 (1971) (Means II); C. Means, Jr., The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality, 14 N.Y.L.F. 411 (1968) (Means I); R. Lucas, Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730 (1968).
- ↑ See Roe, 410 U. S., at 136 n. 6 (citing Means II, supra); id., at 132-133 n. 21 (citing Means I, supra).
- ↑ For critiques of Means's work, see, e.g., Dellapenna 143–152, 325-331; Keown 3–12; J. Finnis, "Shameless Acts" in Colorado: Abuse of Scholarship in Constitutional Cases, 7 Academic Q. 10, 11–12 (1994); Destro, Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 Calif. L. Rev. 1250, 1267–1282 (1975); Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Fordham L. Rev. 807,
